ROUGH JUSTICE
Has the Attorney General gone too far in the fight against terror?

The most tension-packed moment of Assistant Attorney General Michael Chertoff's appearance before the Senate Judiciary Committee last week came, not surprisingly, when he was forced to defend the Bush Administration's embrace of military tribunals. How could the U.S. hold trials in which the judges are military officers, just a two-thirds vote is sufficient to convict, and there is no need for proof beyond a reasonable doubt? How could the Administration support legal proceedings that are held in secret—meaning a defendant can go from being charged to being put to death without the public ever finding out? "Whether you have a civilian tribunal or a military tribunal, it's possible to have a fair one and it's possible to have an unfair one," said Chertoff with steely determination. "It's how you implement it."

The Bush Administration has been just as resolute in defending other hard-nosed legal strategies it has rolled out since September 11—a broad array of tactics that supporters are calling necessary tools in the war on terrorism and that critics are attacking as the sharpest curtailment of civil liberties in decades. Among the flash points: a new measure that allows the government to listen in on conversations between some suspects and their attorneys, the detaining of more than 500 people nationwide without publicly revealing their identities or the charges against most of them, and the ongoing interrogation of 5,000 people within the Arab-American or Muslim communities.

It's been true throughout American history that when the bullets fly, civil liberties are among the first casualties. During the Civil War, Abraham Lincoln suspended the right of habeas corpus, the constitutionally enshrined procedure by which a defendant can challenge a wrongful conviction. In World War II, Franklin Roosevelt interned 120,000 Japanese Americans and tried accused German saboteurs in military courts. The Bush Administration is leaning on these historical precedents in saying the traditional balance between security and freedom needs to shift, at least in the short term. "We're an open society," President Bush declared last week, "but we're at war."

The public, so far at least, is going along. Polls show strong support for everything from increased government power to detain legal immigrants—82% are in favor, according to a Gallup survey—to military tribunals. Most seem to agree with the blunt logic of Utah Republican Senator Orrin Hatch. "Yes, the Administration has been aggressive in using all of the constitutional powers at its disposal," he argues, but it's justified because terrorists "are trying to kill Americans—as many as they possibly can."

Civil libertarians raise three main objections to the tactics the Bush Administration is using to fight terrorism. They argue that even in the current extreme circumstances, some government initiatives aimed at terrorist suspects, like military tribunals, simply go too far. They are worried that the new rules may reshape the legal landscape for all Americans—not just for noncitizens and not just for suspected terrorists. And they are concerned that by brushing aside Congress and the judiciary, the Bush Administration is throwing off the delicate balance among the three branches of government that was intended by the Founding Fathers.

Civil libertarians charge that military tribunals are a perversion of the American justice system. According to legal experts, it is likely that tribunals would be based on the Uniform Code of Military Justice, which calls for military officers as judges and in many cases allows a conviction based on a two-thirds vote. But military tribunals would have even fewer legal niceties than those already stripped-down procedures. Among the protections likely to be missing: the ban on hearsay and the exclusionary rule, which keeps out evidence collected improperly. Whether a defendant could appeal a conviction is unclear. And President Bush's order, which says defendants "shall not be privileged to seek any remedy or maintain any proceeding" in another court, can be read as an attempt to deny the right of habeas corpus.

Above all, critics of the tribunal idea question why these cases cannot be brought in regular federal courts. When the World Trade Center was attacked in 1993, federal prosecutors convicted the bombers, including mastermind Ramzi Ahmed Yousef, in a regular federal court in Manhattan.

Focus groups suggest that Americans see the relationship between security and freedom not as a clash of absolutes but as a balance of values, both of which are important to them. "People raise the concern on their own," an influential Democratic strategist told TIME. "It's very much in the context of ‘If we become like them, they've won.'"

But the free and open debate going on right now about proper methods of law enforcement and the role of the Executive Branch shows just the opposite: that America's enemies, who hate us because we are free, have undeniably lost.

Questions

1. What legal strategies has the Bush Administration enacted in its fight against terrorism?

2. How have civil libertarians responded to these newly enacted strategies?